118 N.Y. 324 | NY | 1890
The plaintiffs were the owners of 211 bales of leather, which the Old Dominion Steamship Company undertook to transport by its steamer Guyandotte from Norfolk, Va. to New York, and deliver to the owners. The vessel reached New York, June 17, 1885, with the leather safe on board, and within twenty-four hours after arrival she sunk at her dock through the negligence of the employees of the steamship company. By this accident the leather was injured, as it is agreed, to the plaintiff's damage in the sum of $1,295.32. In considering this case, the liability of the carrier to the owners of the leather for this loss, will be assumed. The bill of landing under which the leather was shipped contained this provision:
"It is further stipulated and agreed that in case of any loss, detriment or damage to be sustained by any of the property herein receipted for during such transportation, whereby any legal liability or responsibility shall or may be incurred by the terms of this contract, that company alone shall be held answerable therefor in whose actual custody the same may be at the time of happening of such loss, detriment or damage, and the carrier soliable shall have the full benefit of any insurance that may havebeen effected upon or on account of said goods."
The defendant insured the plaintiffs against the loss sustained by them by an open, time, marine policy which contained these provisions:
"In the event of loss, the assured agrees to subrogate to the insurers all their claims against the transporters of said merchandise, not exceeding the amount paid by said insurers."
This action is prosecuted by the assured owners to recover from the insurer their loss so sustained; and it is defended on the ground that the owners violated the provision of the contract of insurance above quoted, by contracting with the carrier, without the insurer's knowledge, that the carrier in case of liability for loss, should have the benefit of the insurance, and, in effect, that the insurer on paying the owners loss should be deprived of its right to be subrogated to the owners right of action against the carrier for injury to the leather.
When goods in the hands of a common carrier for transportation are insured by the owner, and are subsequently lost or injured under circumstances rendering the carrier liable to the owner for the damages and the insurer pays the loss to the owner, the insurer in the absence of stipulations between the carrier and owner defeating the right, is entitled to be subrogated to the rights and remedies of the owner against the carrier. (Hall v.Railroad Co., 13 Wall. 367; C.F. Ins. Co. v. Erie RailwayCo.,
The provision quoted from the bill of lading cut off the insurer's right to be subrogated to the rights and remedies of *328
the owner against the defaulting carrier. (M.M. Ins. Co. v.Calebs,
In Inman v. South Carolina Railway Company (
The plaintiffs in this action expressly stipulated that they would make no agreement, nor do any act whereby their right of action against the carrier for losing or injuring the leather should be released or cut off, and that in case the carrier became liable to the plaintiffs for losing or injuring the leather, the defendant, the insurer, on paying the loss, should be subrogated to their right of action against the carrier. By the contract entered into between the plaintiffs and the carrier, the rights stipulated for by the insurer have been wholly nullified and cut off, which defeats the plaintiffs right to recover on the policy. (Carstairs v. Mechanics Traders Ins.Co., 18 Fed. Rep. 473.)
The judgment should be affirmed, with costs.
All concur, except HAIGHT, J., not voting.
Judgment affirmed.